Arbitration and Conciliation ActChapter 19Laws of the Federation
of Nigeria 1990Arrangement of SectionsPart IArbitrationArbitration
Agreement1Form of arbitration agreement.2Arbitration agreement
irrevocable except by agreement or leave of court.3Death of
party.
4Arbitration agreement and substantive claim before Court.5Power
to stay proceedings
Composition of Arbitral Tribunal6Number of
arbitrators.7Appointment of arbitrators.8Grounds for challenge.
9Challenge procedure.10Termination of mandate due to failure or
impossibility to act.11Appointment of substitute arbitrator.
Jurisdiction of Arbitral Tribunal12Competence of arbitral
tribunal to rule on its jurisdiction.13Power of arbitral tribunal
to order interim measure of protection
Conduct of Arbitral Proceedings14Equal treatment of
parties.15Arbitral proceedings.16Place of arbitration.
17Commencement of arbitral proceedings.18Language to be used in
arbitral proceeding.19Points of claim and defence.
20Hearing and written proceedings.21Default of a party.22Power
of arbitral tribunal to appoint expert.
23Power of court to order attendance of witness.
Making of Awards and Termination of Proceedings24Decision making
by arbitral tribunal.25Settlement.26Form and contents of award.
27.Termination of proceedings.28Correction and interpretation of
award and additional award.
Recourse Against Award29.Application for setting aside an
arbitral award.30Setting aside of award in case of misconduct by
arbitrator, etc.
Recognition and Enforcement of Awards31.Recognition and
enforcement of awards.32Refusal of recognition or enforcement of
awards.
General33.Waiver of right to object.34.Extent of court
intervention.35.Extent of application of this act to
arbitration.
36.Extension of time.
Part IIConciliation37.Right to settle dispute by
reconciliation.38.Request to conciliate.39.Commencement of
reconciliation proceedings.
40.Appointment of conciliators.41.Action by the conciliation
body.42.Terms of settlement.
Part IIIAdditional Provisions Relating to International
Commercial Arbitration and conciliation43.Application of this part
of this act.44.Appointment of sole arbitrator, etc.45.Challenge of
arbitrators.
46.Replacement of arbitrators.47.Rules applicable to substance
of dispute.48.Setting aside of arbitral award.
49.Costs.50.Deposit of costs.51.Recognition and enforcement of
awards.
52.Grounds of refusing recognition of enforcement.53.Application
of arbitration rules set out in the First Schedule.54.Application
of the Convention on Recognition and Enforcement of Foreign
Arbitral Awards, etc.
55.Conciliation rules.
Part IVMiscellaneous56.Receipt of written
communication.57.Interpretation.58.Short title and application.
SchedulesFirst scheduleArbitration RulesSecond
ScheduleConvention on Recognition and Enforcement of Foreign
Arbitral Awards June 10, 1958Third ScheduleConciliation Rules
Arbitration and Conciliation ActChapter 19Laws of the Federation
of Nigeria 1990 [14th March, 1998] An Act to provide a unified
legal frame work for the fair and efficient settlement of
commercial disputes by arbitration and conciliation; and to make
applicable the Convention on the Recognition and Enforcement of
Arbitral Awards (New York Convention) to any award made in Nigeria
or in any contracting State arising out of international commercial
arbitration. Part IArbitrationArbitration agreement1. (1) Every
arbitration agreement shall be in writing contained-(a) in a
document signed by the parties; or(b) in an exchange of letters,
telex, telegrams or other means of communication which provide a
record of the arbitration agreement; or(c) in an exchange of points
of claim an of defence in which the existence of an arbitration
agreement is alleged by one party and denied by another.(2) Any
reference in a contract to a document containing an arbitration
clause constitutes an arbitration agreement if such contact is in
writing and the reference is such as to make that clause part of
the contract.2. Unless a contrary intention is expressed therein,
an arbitration agreement shall be irrevocable except by agreement
of parties or by leave of the court or judge.3. An arbitration
agreement shall not be invalid by reason of death of any party
thereto but shall, in such an event, by enforcement by or against
the personal representative of the deceased.4. (1) A court before
which an action which is the subject of an arbitration agreement is
brought shall, if any party so request not later than when
submitting his first statement on the substance of the dispute,
order or stay of proceedings and refer the parties to
arbitration.(2) Where an action referred to in subsection (1) of
this section has been brought before a court, arbitral proceedings
may nevertheless be commenced or continued, and an award may be
made by the arbitral tribunal while the matter is pending before
the court. 5. (1) If any party to an arbitration agreement
commences any action in any court with respect to any matter which
is the subject of an arbitration agreement any party to the
arbitration agreement may, at any time after appearance and before
delivering any pleadings or taking any other steps in the
proceedings, apply to the court to stay the proceedings.(2) A court
to which an application is made under subsection (1) of this
section may, if it is satisfied-(a) that there is no sufficient
reason why the matter should not be referred to arbitration in
accordance with the arbitration agreement; and(b) that the
applicant was at the time when the action was commenced and still
remains ready and willing to do all things necessary to the proper
conduct of the arbitration, make an order staying the
proceedings.Composition of Arbitral Tribunal6. The parties to an
arbitration agreement may determine the number of arbitrators to be
appointed under the agreement, but where no such determination is
made, the number of arbitrators shall be deemed to be there.7. (1)
Subject to subsection (3) and (4) of this section, the parties may
specify in the arbitration agreement the procedure to be followed
in appointing an arbitrator.(2) Where no procedure is specified
under subsection (1) of this section-(a) in the case of an
arbitration with three arbitrators, each party shall appoint one
arbitrator and the two thus appointed shall appoint the third, so
however that-(i) if a party fails to appoint the arbitrator within
thirty days of receipt of request to do so by the other party;
or(ii) if the two arbitrators fail to agree on the third arbitrator
within thirty days of their appointments, the appointment shall be
made by the court on the application of any party to the
arbitration agreement;(b) in the case of an arbitration with one
arbitrator, where the parties fail to agree on one arbitrator, the
appointment shall be made by the court on the application of any
party to the arbitration agreement made within thirty days of such
disagreement.(3) Where, under an appointment procedure agreed upon
by the parties-(a) a party fails to act as required under the
procedure; or(b) the parties or two arbitrators are unable to reach
agreement as required under the procedure; or(c) third party,
including an institution, fails to perform any duty imposed on it
under the procedure,any part may request the court to take the
necessary measure, unless the appointment procedure agreed upon by
the parties provides other means for securing the appointment.(4) A
decision of the court under the subsections (2) and (3) of this
section shall not be subjected to appeal.(5) The court in
exercising its power of appointment under subsection (2) and (3) of
this section shall have due regard to any qualifications required
of arbitrator by the arbitration agreement and such other
consideration as are likely to secure the appointment of an
independent and impartial arbitrator.8. (1) Any person who knows of
any circumstances likely to give rise to any justifiable doubts as
to his impartiality or independence shall, when approached in
connection with an appointment as an arbitrator, forthwith disclose
such circumstances to the parties.(2) The duty to disclose impose
under subsection (1) of this section shall continue after a person
has been appointed as an arbitrator and subsist throughout the
arbitral proceedings unless the arbitrator had previously disclosed
the circumstances to the parties.(3) An arbitrator may be
challenged-(a) if circumstances exist that give rise to justifiable
doubts as to his impartiality or independence; or(c) if he does not
possess the qualifications agreed by the parties9. (1) The parties
may determine the procedure to be followed in challenging an
arbitrator.(2) Where no procedure is determined under subsection
(1) of this section, a party who intends to challenge an arbitrator
shall, within fifteen days of becoming aware of the constitution of
the arbitral tribunal or becoming aware of any circumstances
referred to in section 8 of this Act, send the arbitral tribunal a
written statement of the reasons for the challenge.(3) Unless the
arbitrator who has been challenged withdraws from office or the
other party agrees to the challenge, the arbitral tribunal shall
decide on the challenge.10. (1) The mandate of the arbitrator shall
terminate-(a) if he withdraws from office; or(b) if the parties
agree to terminate his appointment by reasons of his inability to
perform his functions; or(c) if for any reason he fails to act
without undue delay.(2) The fact that-(a) an arbitrator withdraws
from office under subsection (1) of this section or under section
9(3) of this Act; or(b) a party agrees to the termination of the
mandate of an arbitrator, shall not be construed as implying the
existence of any ground or circumstances referred to in subsection
(1) of this section or section 8(1) of this Act.11. Where the
mandate of an arbitrator terminates-(a) under section 9 or 10 of
this Act; or(b) because of his withdrawal from office for any
reason whatsoever; or(c) because of the revocation of his mandate
by agreement of the parties; or(d) because of any other reason
whatsoever,a substitute arbitrator shall be appointed in accordance
with the same rules and procedure that applied to the appointment
of the arbitrator who is being replaced.Jurisdiction of Arbitral
Tribunal12. (1) An arbitral tribunal shall be competent to rule on
questions pertaining to its own jurisdiction and on any objections
with respect to the existence or validity of an arbitration
agreement.(2) For purposes of subsection (1) of this section, an
arbitration clause which forms part of a contract shall be treated
as an agreement independent of the other terms of the contract and
a decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the validity of the arbitration
clause.(3) In any arbitral proceedings a plea that the arbitral
tribunal-(a) does not have jurisdiction may be raised not later
than the time of submission of the points of defence and a party is
not precluded from raising such plea by reason that he has
appointed or participated in the appointment of an arbitrator;(b)
is exceeding the scope of its authority may be raised as soon as
the matter alleged to be beyond the scope of its authority is
raised during the proceedings, and the arbitral tribunal may, in
either case, admit a later plea if it considers that the delay was
justified.(4) The arbitral tribunal may rule on any plea referred
to it under subsection (3) of this section either as a preliminary
question or in an award on the merits; and such ruling shall be
final and binding.13. Unless otherwise agreed by the parties, the
arbitral tribunal may before or during an arbitral proceedings-(a)
at the request of a party, order any party to take such interim
measure of protection as the arbitral tribunal may consider
necessary in respect of the subject matter of the dispute; and(b)
require any party to provide appropriate security in connection
with any measure taken under paragraph (a) of this sectionConduct
of Arbitral Proceedings14. In any arbitral proceedings, the
arbitral tribunal shall ensure that the parties are accorded equal
treatment and that each party is given full opportunity of
presenting his case.15. (1) The arbitral proceedings shall be in
accordance with the procedure contained in the Arbitration Rules
set out in the first schedule to this Act.(2) Where the rules
referred to in subsection (1) of this section contain no provision
in respect of any matter related to or connected to any particular
arbitral proceedings, the arbitral tribunal may, subject to this
Act, conduct the arbitral proceedings in such a manner as it
considers appropriate so as to ensure fair hearing.(3) There power
conferred on the arbitral tribunal under subsection (2) of this
section, shall include the power to determine admissibly,
relevance, materiality and weight of any evidence placed before
it.16. (1) Unless otherwise agreed by the parties, the place of the
arbitral proceedings shall be determined by the arbitral tribunal
having regard to the circumstances of the case, including the
convenience of the parties.(2) Notwithstanding the provisions of
subsection (1) of this section and unless otherwise agreed by the
parties, the arbitral tribunal may meet at any place it considers
appropriate for consultation among its members, for hearing
witnesses, experts or the parties, or for the inspection of
documents, goods or other property.17. Unless otherwise agreed by
the parties, the arbitral proceedings in respect of a particular
dispute shall commence on the date the request to refer the dispute
to arbitration is received by the other party.18. (1) The parties
may by agreement determine the language or languages to be used in
the arbitral proceedings, but where they do not do so, the arbitral
tribunal shall determine the language or languages to be used
bearing in mind the relevant circumstances of the case.(2) Any
language or languages agreed upon by the parties or determined by
the arbitral tribunal under subsection (1) of this section, shall,
unless, a contrary intention is expressed by the parties or the
arbitral tribunal, be the language or languages to be used in any
written statement by the parties, in any hearing, award, decision
or any other communication in the course of the arbitration.(3) The
arbitral tribunal may order that any documentary evidence shall be
accompanied by a translation into the language or languages agreed
upon by the parties or determined by the arbitral tribunal under
subsection (1) of this section19. (1) The claimant shall, within
the period agreed upon by the parties or determined by the arbitral
tribunal, state the facts supporting his points of claim, the
points at issue and the relief at remedy sought by him, and the
respondent shall state his point of defence in respect of those
particulars, unless the parties have otherwise agreed on the
required elements of the points of claim and of defence.(2) The
parties may submit with their statements under subsection (1) of
this section, all the documents they consider to be relevant or
they may add a reference to the documents, or other evidence they
hope to submit at the arbitral proceedings.(3) Unless otherwise
agreed by the parties, a party may amend or supplement his claim or
defence during his course of the arbitral proceedings if the
arbitral tribunal considers it appropriate to allow such amendment
or supplement having regard to the time that has elapsed before the
making of the amendment or supplement.20. (1) Subject to any
contrary agreement by the parties, the arbitral tribunal shall
decide whether the arbitral proceedings shall be conducted-(a) by
holding oral hearings for the presentation of evidence or oral
arguments; or (b) on the basis of document or other materials;
or(c) by both holding oral hearings and on the basis of documents
or other materials as provided in paragraphs (a) and (b) of this
subsection,and unless the parties have agreed that no hearing shall
be held, the arbitral tribunal shall hold such hearings at an
appropriate stage of the proceedings if requested so to do by any
of the parties(2) The arbitral tribunal shall give to the parties
sufficient advance notice of any hearing and of any meeting of the
arbitral tribunal held for the purposes of inspection of document,
goods, or other property.(3) Every statement, document or other
information supplied to the arbitral tribunal shall be communicated
to the other party by the party supplying the statement, document
or other information, and every such statement, document or other
information supplied by the arbitral tribunal to one party shall be
supplied to the other party. (4) Any expert report or evidentiary
document on which the arbitral tribunal may rely in making its
decision shall be communicated to the parties.(5) The arbitral
tribunal shall, unless otherwise agreed by the parties, have power
to administer oaths to or take the affirmations of the parties and
witnesses appearing.(6) Any party to an arbitral proceedings may
issue out a writ of subpoena ad testificandum or subpoena duces
tecum, but no persons shall be compelled under any such writ to
produce any document which he could not be compelled to produce on
the trial of an action21. Unless otherwise agreed by the parties,
if, without showing sufficient cause-(a) the claimant fails to
state his claim as required under section 19(1) of this Act, the
arbitral tribunal shall terminate the proceedings; or(b) the
respondent fails to state his defence as required under section
19(1) of this Act, the arbitral tribunal shall continue the
proceedings without treating such failure in itself as an admission
of the claimants allegations; or(c) any party fails to appear at a
hearing or to produce documentary evidence, the arbitral tribunal
may continue the proceedings and make an award22. (1) Unless
otherwise agreed by the parties, the arbitral tribunal may-(a)
appoint one or more experts to report to it on specific issues to
be determined by the arbitral tribunal;(b) require a party to give
to the expert any relevant information or to produce or provide
access to, any documents, goods or other property for inspection.
(2) Unless otherwise agreed by the parties, if a party so request
or if the arbitral tribunal considers it necessary, any expert
appointed under subsection (1) of this section shall, after
delivering his written or oral report, participate in a hearing
where the parties shall have the opportunity of putting questions
to him and presenting expert witnesses to testify on their behalf
on the point at issue.(3) The arbitral tribunal shall not decide ex
aequo et bono or as amiable compositeur unless the parties have
expressly authorised it to do so.(4) The arbitral tribunal shall
decide in accordance with the terms of the contract and shall take
account of the usages of the trade application to the
transaction.23. (1) The court or the judge may order that writ of
subpoena ad testificandum or of subpoena duces tecum shall issue to
compel the attendance before any arbitral tribunal of a witness
wherever he may be within Nigeria.(2) The court or a judge may also
order a writ of habeas corpus ad testificandum shall issue to bring
up a prisoner for examination before any arbitral tribunal.(3) The
provisions of any written law relating to the services of an
execution outside a State of the Federation of any such subpoena or
order for the production of a prisoner issued or made in civil
proceedings by the High Court shall apply in relation to a subpoena
or other issue or made under this section.Making an Award and
Termination of Proceedings24. (1) In an arbitral tribunal
compromising more than one arbitrator, any decision of the tribunal
shall, unless otherwise agreed by the parties, be made by a
majority of all its members.(2) In any arbitral tribunal, the
presiding arbitrator may, if so authorised by the parties or all
the members of the arbitral tribunal, decide questions relating to
the procedure to be followed at the arbitral proceeding.25. (1) If,
during the arbitral proceedings, the parties settle the dispute,
the arbitral tribunal shall terminate the arbitral proceedings, and
shall, if requested by the parties and not objected to by the
arbitral tribunal, the settlement in the form of an arbitral award
on agreed terms.(2) an award on agreed terms recorded under
subsection (1) of this section shall-(a) be in accordance with the
provisions of subsection 26 of this Act and state that it is such
an award; and(b) have the same status and effect as any other award
on the merits of case.26. (1) any award made by the arbitral
tribunal shall be in writing and signed by the arbitrator or
arbitrators.(2) where the arbitral tribunal comprises of more than
one arbitrator, the signatures of a majority of all the members of
the arbitral tribunal shall suffice if the reason for the absence
of any signature is stated.(3) the arbitral tribunal shall state on
the award-(a) the reasons upon which it is based, unless the
parties have agreed that no reason are to be given or the award is
an award on agreed terms under section 25 of this Act;(b) the date
it was made; and(c) the place of the arbitration as agreed or
determined under section 16(1) of this Act which place shall be
deemed to be the place where the award was made.(4) A copy of the
award, made and signed by the arbitrators in accordance with and
signed by the arbitrators in accordance with subsection (1) and (2)
of this section, shall be delivered to each party.27. (1) The
arbitral proceedings shall terminate when the final award is made
or when an order of the arbitral is issue under subsection (2) of
this section.(2) The arbitral tribunal shall issue an order for the
termination of the arbitral proceedings when-(a) the claimant
withdraws his claim, unless the respondent objects thereto and
arbitral tribunal recognises a legitimate interest on his part in
obtaining a final settlement of the dispute; or(b) the parties
agree on the termination of the arbitral proceedings; or(c) the
arbitral tribunal finds that continuation of the arbitral
proceeding has for any reason become unnecessary or Impossible.(3)
Subject to the provisions of section 28 and 29(2) of this Act, the
mandate of the arbitral tribunal shall cease on termination of the
arbitral proceedings.28. (1) Unless another period has been agreed
upon by the parties, a party may, within thirty days of the receipt
of an award and with notice to the other party, request the
arbitral tribunal-(a) to correct in the award any errors in
computation, any clerical or typographical errors or any errors of
a similar nature;(b) to give an interpretation of a specific point
or part of the award.(2) If the arbitral tribunal considers any
request made under subsection (1) of this section to be justified,
it shall, within thirty days of receipt of the request, make the
correction or give the interpretation and such correction or
interpretation shall form part of the award.(3) The arbitral
tribunal may, on its own volition and within thirty days from the
date of the award, correct any error of the type referred to in
subsection (1)(a) of this section.(4) Unless otherwise agreed by
the parties, a party may within thirty days of receipt if the
award, request the arbitral tribunal to make an additional award as
to the claims presented in the arbitral proceedings but omitted
from the award.(5) If the arbitral tribunal considers any request
made under subsection (4) of this section to be justified, it
shall, within sixty days of the receipt of the request, make the
additional award.(6) The arbitral tribunal may, if it considers
necessary, extent the time limit within which it shall make a
correction, give an interpretation or make an additional award
under subsection (2) or (5) of this section.(7) This provision of
this section 26 of this Act, which relate to the form and contents
of an award, shall apply to any correction or interpretation or to
an additional award made under this section.Recourse Against
Award29. (1) A party who is aggrieved by an arbitral award may
within three months-(a) from the date of the award; or(b) in a case
falling within section 28 of this Act, from the date of the request
for additional award is disposed of by the arbitral tribunal,by way
of an application for setting aside, request the court to set aside
the award in accordance with subsection (2) of this section.(2) The
court may set aside an arbitral award if the party making the
application furnishes proof that the award contains decisions on
maters which are beyond the scope of submission to arbitration so
however that if the decisions on matters submitted to arbitration
can be separated from those not submitted, only that part of the
award which contains decisions on matters not submitted may be set
aside.(3) the court before which an application is brought under
subsection (1) of this section may, at the request of a party where
appropriate, suspend proceedings for such period as it may
determine to afford the arbitral tribunal an opportunity to resume
the arbitral proceedings or take such other action to eliminate the
grounds for setting aside of the award.30. (1) Where an arbitrator
has misconduct himself, or where the arbitral proceedings, or
award, has been improperly procured, the court may on application
of a party set aside the award.(2) An arbitrator who has
misconducted himself may on the application of any party be removed
by the court. Recognition and Enforcement of Awards31. (1) An
arbitral award shall be recognised as binding and subject to this
section 32 of this Act, shall, upon application in writing to the
court, be enforced by the court.(2) The party relying on an award
or applying for its enforcement shall supply-(a) the duly
authenticated original award or duly certified copy thereof;(b) the
original arbitration agreement or a duly certified copy thereof.(3)
An award may, by leave of the court or a judge, be enforced in the
same manner as a judgement or order to the same effect.32. Any of
the parties to an arbitration agreement may request the court to
refuse recognition or enforcement of the award. General33. A party
who knows-(a) that any provision of this Act from which the parties
may not derogate; or(b) that any requirement under the arbitration
agreement, has not been complied with and yet proceeds with the
arbitration without stating his objection to non-compliance within
the time limit provided therefore shall be deemed to have waived
his right to object to the non-compliance.34. A court shall not
intervene in any matter governed by this Act except where so
provided in this Act.35. This Act shall not affect any other law by
virtue of which certain disputes-(a) may not be submitted to
arbitration; or(b) may be submitted to arbitration only in
accordance with the provisions of that or another law.36.
Notwithstanding the provisions of this Act the arbitral tribunal
may, if it considers it necessary, extend the time specified for
the performance of any act under this Act.Part IIConciliation37.
Notwithstanding the other provisions of this Act, the parties to
any agreement may seek amicable settlement of any dispute in
relation to the agreement by conciliation under the provisions of
this part of this Act.38. (1) A party who wishes to initiate
conciliation shall send to the other party a written request to
conciliate under the provisions of this Part of this Act.(2) Any
request sent under subsection (10 of this section shall contain a
brief statement setting out the subject of the dispute.39. The
conciliation proceedings shall commence on the date the request to
conciliate is accepted by the subject of the dispute.40. Where the
request to conciliate under section 38 of this Act has been
accepted, the parties shall refer the dispute to a conciliation
body consisting of one or three conciliators to be appointed-(a) in
the case of one conciliator, jointly by the parties;(b) in the case
of three conciliators-(i) one conciliator by each party, and(ii)
the third conciliator jointly by the parties.41. (1) The
conciliation body shall acquaint itself with the details of the
case and procure such other information it may require for the
purpose of settling the dispute.(2) The parties may appear in
person before the conciliation body and may have legal
representation.42. (1) After the conciliation body has examined the
case and heard the parties, if necessary, it shall submit its terms
of settlement to the parties.(2) If the parties agree to the term
of settlement submitted under subsection (1) of this section, the
conciliation body shall draw up and sign a record of settlement.(3)
If the parties do not agree to the terms of settlement submitted
under subsection (1) of this section, they may-(a) submit the
dispute to arbitration in accordance with any agreement between
them; or(b) take any action in court as they may deem fit.(4)
Nothing done in connection with the conciliation proceedings shall
affect the legal rights of the parties in any submission to
arbitration or any action taken under subsection (3) of this
section.Part IIIADDITIONAL PROVISIONS RELATINGTO INTERNATIONAL
COMMERCIAL ARBITRATIONAND CONCILIATIONApplication of this Part of
this Act and Compositionof Arbitral Tribunal, etc.43. The provision
of this Part of this Act shall apply solely to cases relating to
international commercial arbitration and conciliation in addition
to the other provisions of this Act.44. (1) If a sole arbitrator is
to be appointed, either party may propose to the other the names of
one or more persons, one of whom will serve as the sole
arbitrator.(2) If within thirty days after receipt by a party of a
proposal made in accordance with subsection (1) of this section the
parties have not reached agreement on the choice of a sole
arbitrator shall be appointed by the appointing authority.(3) The
appointing authority shall, at the request of one of the parties
appoint the sole arbitrator as promptly as possible; and in making
the appointment the appointing authority shall use the following
list procedure, unless both parties agree that the list-procedure,
unless both parties agree that the list procedure should not be
used or unless the appointing authority determines in its
discretion that the use of the list procedure is not appropriate
for the case, that is-(a) at the request of one of the parties the
appointing authority shall communicate to both parties an identical
list containing at least three names;(b) within fifteen days after
the receipt of the said list, each party may return the list to the
appointing authority after having deleted the name or names to
which he objects and numbered the remaining names on the list in
the order of his preferences;(c) after the expiration of the above
named period of time the appointing authority shall appoint the
sole arbitrator from among the names approved on the list returned
to it and in accordance with the order of preference indicated by
the parties.(4) In making the appointment, the appointing authority
shall have regard to such consideration as are likely to secure the
appointment of an independent and impartial arbitrator and shall
take into account as well as the advisability of appointing an
arbitrator of a nationality other than the nationalities of the
parties.(5) If three arbitrators are to be appointed, each party
shall appoint one arbitrator; and the two arbitrators thus
appointed shall choose the third arbitrator who shall act as the
presiding arbitrator of the arbitral tribunal.(6) If within thirty
days after the receipt of a partys notification of the appointment
of an arbitrator the other party has not notified the other party
of the arbitrator he has appointed the first party may request the
appointing authority previously designated by the parties to
appoint the second arbitrator.(7) If within thirty days after the
appointment of a second arbitrator the two arbitrators have not
agreed on the choice of the presiding arbitrator, the presiding
arbitrator shall be appointed by the appointing authority in the
same way as a sole arbitrator would be appointed under subsection
(1) to (4) of this section.(8) When the appointing authority is
required to appoint an arbitrator pursuant to the provisions of
this section, the party which makes the request shall send to the
appointing authority a copy of the notice of arbitration, a copy of
the out of or in relation to which the dispute has arisen and a
copy of the arbitration agreement if it is not contained in the
contract, and the appointing authority may require from either
party such information as it deems necessary to fulfil its
functions under this Act.(9) Where the names of one or more persons
are proposed for appointment as arbitrators, their full names,
addresses and nationalities shall be indicated, together with a
description of their qualifications.(10) Except as otherwise agreed
by the parties, no person shall be disqualified from being
appointed by reason of his nationality.45. (1) A prospective
arbitrator shall disclose to those who approach him in connection
with his possible appointment and circumstances likely to give rise
to justifiable doubt as to his impartiality or independence.(2) An
arbitrator, once appointed or chosen, shall disclose such
circumstances as referred to in subsection (1) of this section to
the parties unless they have already been informed by him of those
circumstances.(3) Any arbitrator may be challenged if circumstances
exist that give rise to justifiable doubts as to the arbitrators
impartiality or independence.(4) A party may challenge the
arbitrator appointed by him only for reasons of which he becomes
aware after the appointment has been made.(5) A party who intends
to challenge an arbitrator shall send notice of his challenge
within fifteen days after the appointment of the challenged
arbitrator has been notified to the challenging party or within
fifteen days after circumstances mentioned in subsection (1) to (4)
of this section become known to that party.(6) The challenge shall
be notified to the other party, to the arbitrator who is challenged
and to the other members of the arbitral tribunal and the
notification shall be in writing and shall state the reason for the
challenge.(7) When an arbitrator has been challenged by one party,
the other party may agree to the challenge and the challenged
arbitrator may also, after the challenge, withdraw from his office;
but the fact that the other party agrees to the challenge or that
the arbitrator withdraws does not imply acceptance of the validity
of the grounds for the challenge.(8) Where the other parties agree
to the challenge or the challenged arbitrators withdraws, the
procedure provided in section 44 of this Act shall be used in full
for the appointment of the substitute arbitrator, even during the
process of appointing the challenged arbitrator a party had failed
to exercise to appoint or to participate in the appointment.(9) If
the other party does not agree to the challenge and the challenged
arbitrator does not withdraw, the decision on the challenge shall
be made-(a) When the initial appointment was made by an appointing
authority, by that authority;(b) When the initial appointment was
not made by an appointing authority,but an appointing authority has
been previously designated, by the authority;(c) In all other
cases, by the appointing authority to be designated in accordance
with the procedure for designating an appointing as provided for in
section 44 of this Act.(10) If the appointing authority sustains
the challenge, a substitute arbitrator shall be appointed or chosen
pursuant to the procedure applicable to the appointment or choice
of an arbitrator as provided in section 44 of this Act and in this
section except that, when the procedure would call for the
designation of an appointing authority, the appointment of the
arbitrator shall be made by the appointing authority which decided
on the challenge.46. (1) Where an arbitrator dies or resigns during
the course of an arbitral proceeding, a substitute arbitrator shall
be appointed or chosen pursuant to the procedure provided for in
section 44 and 45 of this Act that was applicable to the
appointment or choice of the arbitrator being replaced.(2) Where an
arbitrator fails to act or in the event of the de jure or de facto
impossibility of his performing his functions, the procedure in
respect of the challenge and replacement of an arbitrator as
provided in section 44 and 45 of this Act shall apply.Making of
Awards and Termination of proceedings47. (1) the arbitral tribunal
shall decide the dispute in accordance with the rules in force in
the country whose laws the parties have chosen as applicable to the
substance of the dispute .(2) Any designation of the law or legal
system of a country shall, unless otherwise expressed, be construed
as directly referring to the substantive law of that country and
not to its conflict of law rules.(3) Where the laws of the country
to be applied is not determined by the parties, the arbitral
tribunal shall apply the law determined by the conflict of the law
rules which it considers applicable.(4) The arbitral tribunal shall
not decide ex aequo et bono or as amiable compositeur unless the
parties have expressly authorised it to do so. (5) In all cases,
the arbitral tribunal shall decide in accordance with the terms of
the contract and shall take account of the usages of the trade
applicable to the transaction.(6) If the arbitration law of the
country where the award is made requires that the award be filed or
registered by the arbitral tribunal, the arbitral tribunal shall
comply with this requirement within the period of time required by
law.48. The court may set aside an arbitral award-(a) If the party
making the application furnishes proof-(i) that a party to the
arbitration agreement was under some incapacity,(ii) That the
arbitration agreement is not valid under the law which the parties
have indicated should be applied, or failing such indication, that
the arbitration agreement is not valid under the laws of
Nigeria,(iii) That he was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was
otherwise not able to present his case, or(iv) That the award deals
with a dispute not contemplated by or not falling within the terms
of the submission to arbitration, or(v) That the award contains
decisions on matters which are beyond the scope of submission to
arbitration, so however that the if decisions on matters submitted
to arbitration can be separated from those not submitted, only that
part of the award which contains decision on matters not submitted
to arbitration may be set aside, or(vi) That the composition of the
arbitral tribunal, or the arbitral procedure, was not in accordance
with the agreement of the parties, unless such agreement was in
conflict with a provision of this Act from which the parties cannot
derogate, or(vii) Where there is no agreement between the parties
under subparagraph (vi) of this paragraph, that the composition of
the arbitral tribunal or the arbitral procedure was not in
accordance with this Act; or(b) if the court finds-(i) that the
subject-matter of the dispute is not capable of settlement by
arbitration under laws of Nigeria; or(ii) that the award is against
public policy of Nigeria.49. (1) The arbitral tribunal shall fix
costs of arbitration in its award and the term "cost" includes
only-(a) the fees of the arbitral tribunal to be stated separately
as to each arbitrator and to be fixed by the tribunal itself; (b)
the travel and other expenses incurred by the arbitrators;(c) the
cost of expert advice and of other assistance required by the
arbitral tribunal;(d) the travel and other expenses of witnesses to
the extent that such expenses are approved by the arbitral
tribunal;(e) the cost for legal representation and assistance of
the successful party if such cost were claimed during the arbitral
proceedings, and only to the extent that the arbitral tribunal
determines that the amount of such cost is reasonable.(2) The fees
of the arbitral tribunal shall be reasonable in amount taken
account the amount in dispute, the complexity of the
subject-matter, the time spent by the arbitrators and any other
relevant circumstances of the case.(3) If an appointing authority
has been agreed upon by the parties or designated by the
Secretary-General of the Permanent Court of Arbitration at The
Hague, and if that authority has issued a schedule of fees for
arbitrators in international cases which it administers, the
arbitral tribunal in fixing his fees shall take that schedule of
fees into account to the extent that it considers appropriate in
the circumstances of the case.(4) If such appointing authority has
not issued a schedule of fees for arbitrators in international
cases, any party may at any time request the appointing authority
to furnish a statement setting forth the basis for establishing
fees which is customarily followed in international cases in which
the authority appoints arbitrators; and if the appointing authority
consents to provide such a statement, the arbitral tribunal in
fixing its fees shall take such information into account to the
extent that it considers appropriate in the circumstances of the
case.(5) In cases referred to in subsection (3) and (4) of this
section when a party so requests and the appointing authority
consents to perform the function, the arbitral tribunal shall fix
its fees only after consultation with the appointing authority,
which may make any comment it deems appropriate to the arbitral
tribunal concerning the fees.50. (1) The arbitral tribunal, on its
establishment, may request each party to deposit an equal amount as
an advance for the cost referred to in paragraph (a), (b) and (c)
of this section 49(1) of this Act.(2) During the course of the
arbitral proceedings the arbitral tribunal may request
supplementary deposits from the parties.(3) If an appointing
authority has been agreed upon by the parties or designated by the
Secretary-General of the Permanent Court of Arbitration at The
Hague, and when a party so requests and the authority consents to
perform the function, the arbitral tribunal shall fix the amount of
any deposits or supplementary deposits only after consultation with
the appointing authority which may make any comments to the
arbitral tribunal which it deems appropriate concerning the amount
of such deposits and supplementary deposits.(4) If the required
deposits are not paid in full within thirty days after the receipt
of the request, the arbitral tribunal shall so inform the parties
in order that one or other of them may make the required payment;
and if such payment is not made, the arbitral tribunal may order
the suspension or termination of the arbitral proceedings.(5) After
award has been made, the arbitral tribunal shall render an account
to the parties of the deposits received and return any unexpended
balance to the partiesRecognition and Enforcement of Awards51. (1)
An arbitral award shall, irrespective of the country in which it is
made, be recognised as binding and subject to this section 32 of
this Act, shall, upon application in writing to the court, be
enforced by the court.(2) The party relying on an award or applying
for its enforcement shall supply(a) the duly authenticated original
award or a duly certified copy thereof;(b) the original arbitration
agreement or a duly certified copy thereof; and(c) where the award
or arbitration agreement is not made in the English language, a
duly certified translation thereof into the English language.52.
(1) Any of the parties to an arbitration agreement may request the
court to refuse recognition or enforcement of the award.(2) The
court where recognition or enforcement of an award is sought or
where application for refusal of recognition or enforcement thereof
is brought may, irrespective of the country in which the award is
made, refuse to recognise or enforce any award-(a) if the party
against whom it is invoked furnishes the court proof-(i) that a
party to the arbitration agreement was under some incapacity,
or(ii) that the arbitration agreement is not valid under the law
which the parties have indicated should be applied, or failing such
indication, that the arbitration agreement is not valid under the
law of the country where the award was made, or(iii) that he was
not given proper notice of the appointment of an arbitrator or of
the arbitral proceedings or was otherwise not able to present his
case, or(iv) that the award deals with a dispute not contemplated
by or not falling within the terms of the submission to
arbitration, or(v) that the award contains decisions on matters
which are beyond the scope of submission to arbitration, so however
that if the decision on matters submitted to arbitration can be
separated from those not submitted, only that part of the award
which contains decisions on maters submitted to arbitration may be
recognised and enforced, or(vi) that the composition of the
arbitral tribunal, or the arbitral procedure, was not in accordance
with the agreement of the parties, or (vii) where there is no
agreement within the parties under sub-paragraph, that the
composition of the arbitral tribunal , or the arbitral procedure,
was not in accordance with the law of the country where the
arbitration took place, or(viii) that the award has not yet become
binding on the parties or has been set aside or suspended by a
court in which, or under the law of which, the award was made;
or(b) if the court finds-(i) that the subject-matter of the dispute
is not capable of settlement by arbitration under the laws of
Nigeria, or(ii) that the recognition or enforcement of the award is
against public policy of Nigeria.(3) Where an application for the
recognition of an award has been made to a court referred to in
subsection (2)(a)(viii) of this section, the court before which the
recognition or enforcement is sought may, if it considers it
proper, postpone its decision and may on the application of the
party claiming recognition or enforcement of the award, order the
other party to provide appropriate security.Application of
Arbitration Rules set out in the First Schedule53. Notwithstanding
the provisions of this Act, the parties to an international
commercial agreement may agree in writing that disputes in relation
to the agreement shall be referred to arbitration in accordance
with the Arbitration Rules set out in the First Schedule to this
Act, or the UNCITRAL Arbitration Rules or any other international
arbitration rule acceptable to the parties.Application of
Convention on the recognition and Enforcementof Foreign Arbitral
Awards54. (1) Without prejudice to section 51 and 52 of this Act,
where the recognition and enforcement of any award arising out of
an international commercial arbitration are sought, the Convention
on the Recognition and Enforcement of Foreign Awards (hereafter
referred to as "the Convention") set out in the Second Schedule to
this Act shall apply to any award made in Nigeria or in any
contracting state:(a) provided that such contracting state has
reciprocal legislation recognising the enforcement of arbitral
awards made in Nigeria in accordance with the provisions of the
Convention;(b) that the Convention shall apply only to differences
arising out of legal relationship which is contractual.(2) in this
part of this Act, " the appointing authority" means the
Secretary-General of the Permanent Court of Arbitral at The
Hague.Conciliation55. Notwithstanding the provisions of this Act,
the parties to an international commercial agreement may agree in
writing that disputes in relation to the agreement shall be settled
by Conciliation Rules set out in the Third Schedule to this
Act.PART IVMISCELLANEOUS56. (1) Unless otherwise agreed by the
parties, any communication sent under or pursuant to this Act shall
be deemed to have been received-(a) When it is delivered to the
addressee personally or when it is delivered to his place of
business, habitual residence or mailing address; or (b) Where a
communication cannot be delivered under paragraph (a) of this
subsection, when it is sent to the addressees last known place of
business, habitual residence or mailing address by registered
letter or any other means which provides a record of the attempt to
deliver it .(2) A communication shall be deemed to have been
received on the day it is delivered under subsection (1) of this
section.(3) The provisions of this section shall not apply to
communications in court proceedings.57. (1) In this Act, unless the
context otherwise requires- "arbitral tribunal" means a sole
arbitrator or a panel of arbitrators;"arbitration" means a
commercial arbitration whether or not administered by a permanent
arbitral institution;"commercial" means all relationships of a
commercial nature including any trade transaction for the supply or
exchange of goods or services, distribution agreement, commercial
representation or agency, factoring, leasing, construction of
works, constructing, engineering licensing, investment, financing,
banking, insurance, exploitation, agreement or concession, joint
venture and other forms of industrial or business co-operation,
carriage of goods or passengers by air, sea, rail, or road;"court"
means the High Court of a State, the High Court of a Federal
Capital Territory, Abuja or the Federal High Court;"Judge" means a
Judge of the High Court of a State, the High Court of the Federal
Capital Territory, Abuja or the Federal High Court;"party" means a
party to the arbitration agreement or to conciliation or any person
claiming through or under him and "parties" shall be construed
accordingly.(2) An arbitration is international if (a) the parties
to an arbitration agreement have, at the time of the conclusion of
the agreement, their places of business in different countries;
or(b) one of the following places is situated outside the country
in which the parties have their places of business-(i) the place of
arbitration if such place is determined in, or pursuant to the
arbitration agreement,(ii) any place where a substantial part of
the obligation of the commercial relationship is to be performed or
the place with which the subject-matter of the dispute is mist
closely connected; or(c) the parties have expressly agreed that the
subject matter of the arbitration agreement relates to more than
one country; or(d) the parties, despite the nature of the contract,
expressly agree that any dispute arising from the commercial
transaction shall be treated as an international arbitration.(3)
For the purposes of subsection (2) of this section-(a) if a party
has more than one place of business, the place of business shall be
that which has the closest relationship to the arbitration
agreement;(b) if a party does not have a place of business,
reference shall be made to his habitual residence.(4) Where a
provision of this Act, other than section 47 of this Act, leaves
the parties free to determine a certain issue, such freedom include
the right of the parties to authorise a third party, including an
institution, to make that determination.(5) Where a provision of
this Act-(a) refers to the fact that parties have agreed or that
they may agree; or(b) in any other way refers to an agreement of
the parties, such agreement includes any arbitration rules referred
to In the agreement.(6) Where a provision of this Act, other than
section 21(a) or 27(2)(a) refers to a claim, such claim includes a
counter-claim, and where it refers to a defence, such defence
includes a defence to such counter-claim.58. This Act may be cited
as the Arbitration and Conciliation Act and shall apply throughout
the FederationSchedulesFirst ScheduleArbitration RulesSection
1Introductory RulesScope of ApplicationArticle 11. These Rules
shall govern any arbitration proceedings except that where any of
these Rules is in conflict with a provision of this Act, the
provision of this Act shall prevail.NOTICE, CALCULATION OF PERIODS
OF TIMEArticle 21. For the purpose of these Rules, any notice,
including a notification, communication or proposal, is deemed to
have been received if it is physically delivered to the addressee
or if it is delivered at his habitual residence, place of business
or mailing address, or, if none of these can be found after making
reasonable inquiry, then at the addressees last known residence or
place of business. Notice shall be deemed to have been received on
the day it is so delivered.2. For the purposes of calculating a
period of time under Rules, such period shall begin to run on the
day following the day when a notice, notification, communication or
proposal is received. If the last day of such period is an official
holiday or a non-business day at the residence or place of business
of the addressee, the period is extended until the first business
day which follows. Official days or non-business days occurring
during the running of the period of time are included in
calculating the period.NOTICE OF ARBITRATIONArticle 31. The party
initiating recourse to arbitration (hereinafter called the
"claimant") shall give to the other party (hereinafter called the
"respondent") a notice of arbitration.2. Arbitral proceedings shall
be deemed to commence on the date on which the notice of
arbitration is received by the respondent.3. The notice of
arbitration shall include the following:(a) a demand that the
dispute be referred to arbitration(b) the names and addresses of
the parties;(c) a reference to the arbitration clause or the
separate arbitration agreement that is invoked;(d) a reference tot
the contract out of or in relation to which the dispute arises;(e)
the general nature of the claim and an indication of the amount
involved, if any;(f) the relief or remedy sought;(g) a proposal as
to the number of arbitrators (i.e. one or three), if the parties
have not previously agreed thereon.4. The Notice of Arbitration may
also include:(a) the proposals for the appointment of a sole
arbitrator;(b) the notification of the appointment of an arbitrator
referred to in Article 7;(c) the statement of claim referred to in
Article 18.REPRESENTATION AND ASSISTANCEArticle 4The parties may be
represented or assisted by legal practitioners of their choice. The
names and addresses of such legal practitioners must be
communicated in writing to the other party; such communication must
specify whether the appointment is being made for purposes of
representation or assistance.SECTION 11- COMPOSITION OF THE
ARBITRAL TRIBUNALNUMBERS OF ARBITRATORSArticle 5If the parties have
not previously agreed on the number of arbitrators (i.e. one or
three), and if within fifteen days after the receipt by the
respondent of the notice of arbitration the parties have not agreed
that there shall be only one arbitrator, three arbitrators shall be
appointed.APPOINTMENT OF ARBITRATORS (ARTICLES 6 TO 8)Article 61.
If a sole arbitrator is to be appointed, either party may propose
to the other the names of one or more persons, one of whom would
serve as the sole arbitrator.2. If within thirty days after receipt
by a party of a proposal made in accordance with paragraph 1, the
parties have not reached agreement on the choice of a sole
arbitrator, the sole arbitrator shall be appointed by the court.3.
The court shall, at the request of one of the parties appoint the
sole arbitrator as promptly as possible; and in making the
appointment the court shall use the following list-procedure,
unless both parties agree that the list-procedure should not be
used or unless the court determines in its discretion that the use
of the list-procedure is not appropriate for the case:(a) at the
request of one of the parties the court shall communicate to both
parties an identical list containing at least three names;(b)
within fifteen days after the receipt of this list, each party may
return the list to the court after having deleted the name or names
to which he objects and numbered the remaining names on the list in
the order of preference;(c) after the expiration of the above
period of time the court shall appoint the sole arbitrator from
among the names approved on the lists return to it and in
accordance with the order of preference indicated by the
parties;(d) if for any reason the appointment cannot be made
according to this procedure, the court may exercise its discretion
in appointing the sole arbitrator.4. In making the appointment, the
court shall have regard to such considerations as are likely to
secure the appointment of an independent and impartial arbitrator
and shall take into account as well the advisability of appointing
an arbitrator of a nationality other than the nationalities of the
parties.Article 71. If three arbitrators are to be appointed, each
party shall appoint one arbitrator; and the two arbitrators thus
appointed shall chose the third arbitrator who will act as the
presiding arbitrator of the tribunal.2. If within thirty days after
the receipt of a partys notification of the appointment of an
arbitrator the other party has not notified the first party of the
arbitrator he has appointed the first party may request the court
to appoint the second arbitrator.3. If within thirty days after the
appointment of the second arbitrator the two arbitrators have not
agreed on the choice of the presiding arbitrator, the presiding
arbitrator shall be appointed by the court in the same way as a
sole arbitrator would be appointed under Article 6.Article 81. When
a court is requested to appoint an arbitrator pursuant to Article 6
or Article 7, the party which makes the request shall send to the
court an affidavit together with a copy of the notice of
arbitration, a copy of the contract out of or in relation to which
the dispute has arisen and a copy of the arbitration agreement if
it is not contained in the contract. The court may require from
either party such information as it deems necessary to fulfil its
functions.2. Where the names of one or more persons are proposed
for appointment as arbitrators, their full names and addresses
shall be indicated, together with a description of their
qualification.CHALLENGE OF ARBITRATORS (ARTICLE 9 TO 12)Article 9A
prospective arbitrator shall disclose to those who approach him in
connection with his possible appointment any circumstances likely
to give rise to justifiable doubts as to his impartiality or
independence. An arbitrator, once appointed or chosen, shall
disclose their circumstances to the parties unless they have
already been informed by him of these circumstances.Article 101.
Any arbitrator may be challenged if circumstances exist that give
rise to justifiable doubts as to the arbitrators impartiality or
independence.2. A party may challenge the arbitrator appointed by
him only for reasons of which he becomes aware after the
appointment has been made.Article 111. A party who tends to
challenge an arbitrator shall send notice of his challenge within
fifteen days after the appointment of the challenged arbitrator has
been notified to the challenging party or within fifteen days after
the circumstances mentioned in article 9 and 10 became known to
that party.2. The challenge shall be notified to the other party,
to the arbitrator who is challenged and to the other members of the
arbitral tribunal. The notification shall be in writing and shall
state the reason for the challenge.3. When an arbitrator has been
challenged by one party, the other party may agree to the
challenge, withdraw from his office. In neither case does this
imply acceptance of the validity of the grounds for the challenge.
In both cases the procedure provided in Article 6 or 7 shall be
used in full for the appointment of the substitute arbitrator, even
if during the process of appointing the challenged arbitrator a
party had failed to exercise his right to appoint or to participate
in the appointment.Article 121. If the other party does not agree
to the challenge and the challenged arbitrator does not withdraw,
the decision on the challenge will be made-(a) when the initial
appointment was made by the court, by the court;(b) when the
initial appointment was not made by court, but an appointment
authority has been previously designated, by that authority;(c) in
all other cases, by the court as provided for in Article 6.1. If
the court sustains the challenge, a substitute arbitrator shall be
appointed or chosen pursuant to the procedure applicable to the
appointment or choice of an arbitrator as provided in Articles 6 to
8 except that, when this procedure would call for appointment by
the court, the appointment of the arbitrator shall be made by the
court which decided on the challenge.REPLACEMENT OF AN
ARBITRATORArticle 131. In the event of the death or resignation of
an arbitrator during the course of the arbitral proceedings, a
substitute arbitrator shall be appointed or chosen pursuant to the
procedure provided for in Articles 6 to 8 that was applicable to
the appointment or choice of the arbitrator being replaced2. In the
event that an arbitrator fails to act or in the event of de jure or
de facto impossibility of his performing his functions, the
procedure in respect of the challenge and replacement of an
arbitrator as provided in the proceeding articles shall
apply.REPETITION OF HEARINGS IN THE EVENTOF THE REPLACEMENT OF AN
ARBITRATORArticle 14If under articles 11 and 13 the sole or
presiding arbitrator is replaced, any hearings held previously
shall be repeated at the discretion of the arbitral
tribunal.SECTION 111- ARBITRAL PROCEEDINGSGENERAL PROVISIONSArticle
151. Subject to these Rules, the arbitral tribunal may conduct the
arbitration in such manner as it considers appropriate, provided
that the parties are treated with equality and that at any stage of
the proceedings each party is given a full opportunity of
presenting his case.2. If either party so requests at any stage of
the proceedings, the arbitral tribunal shall hold hearings for the
presentation of evidence by witnesses, including expert witnesses,
or for oral argument. In the absence of such a request, the
arbitral tribunal shall decide whether to hold such hearing or
whether the proceedings shall be conducted on the basis documents
and other materials.3. All documents or information supplied to the
arbitral tribunal by one party shall at the same time be
communicated by the party to the other party.PLACE OF
ARBITRATIONArticle 161. Unless the parties have agreed upon the
place where the arbitration is to be held, such place shall be
determined by the arbitral tribunal, having regard to the
circumstances of the arbitration.2. The arbitral tribunal may
determine the locale of the arbitration within the place agreed
upon by the parties. It may hear witnesses and hold meeting for
consultation among its members at any place it deems appropriate,
having regard to the circumstances of the arbitration.3. The
arbitral tribunal may meet at any place it deems appropriate for
the inspection of goods, other property or document. The parties
shall give sufficient notice to enable them to be present at such
inspection.LANGUAGEArticle 171. Subject to an agreement by the
parties, the arbitral tribunal shall, promptly after its
appointment, determine the language or languages to be used in the
proceedings. This determination shall apply to the statement of
claim, the statement of defence, and any further written statements
and, if oral hearings take place to the language or languages to be
used at such hearing.2. The arbitral tribunal may order that any
document annexed to the statement of claim or statement of defence,
and any supplementary statement documents or exhibits submitted in
the course of the proceedings, delivered in their original
language, shall be accompanied by a translation into the language
or languages agreed upon by the parties or determined by the
arbitral tribunal.STATEMENT OF CLAIMArticle 181. Unless the
statement of claim was contained in the notice of the arbitration,
within a period of time to be determined by the arbitral tribunal,
the claimant shall communicate his statement of claim in writing to
the respondent and to each of the arbitrators. A copy of the
contract, and the arbitration agreement if not contained in the
contract, shall be annexed thereto.2. The statement of claim shall
include the following particulars:(a) the names and addresses of
the parties(b) a statement of the facts supporting the claim;(c)
the point at issue;(d) the relief or remedy sought.3. The claimant
may annex to his statement of claim all documents he deems relevant
or may add a reference to the documents or other evidence he will
submit.STATEMENT OF DEFENCEArticle 191. Within a period of time to
be determined by the arbitral tribunal, the respondent shall
communicate his statement of defence in writing to the claimant and
to each of the arbitrators.2. The statement of defence shall reply
to the particular (b), (c) and (d) of the statement of claim
(Article 18, paragraph 2). The respondent may annex to his
statement the documents on which he relies for his defence or may
add a reference to the documents or other evidence he will
submit.3. In his statement of defence, or at a later stage in the
arbitral proceedings if the arbitral tribunal decide that the delay
was justified under the circumstances, the respondent may make a
counter-claim arising out of the same contract or rely on a claim
arising out of the same contract for the purpose of a set-off.4.
The provisions of Article 18, paragraph 2, shall apply to a
counter-claim and a claim relied on for the purpose of a
set-off.AMENDMENTS TO THE CLAIM OR DEFENCEArticle 20During the
course of the arbitral proceedings either party may amend or
supplement his claim or defence unless the arbitral tribunal
considers it inappropriate to allow such amendment having regard to
the delay in making it or prejudice to the other party or any other
circumstances. However, a claim not be amended in such a manner
that the amended claim falls outside the scope of the arbitration
clause or separate arbitration agreement.PLEAS AS TO THE
JURISDICTION OF THE ARBITRAL TRIBUNALArticle 211. The arbitral
tribunal shall have the power to rule on objections that it has no
jurisdiction, including any objections with respect to the
existence or validity of the arbitration clause or of separate
arbitration agreement.2. The arbitral tribunal shall have the power
to determine the existence or the validity of the contract of which
an arbitration clause forms a part. For the purposes of this
article, an arbitration clause which forms part of a contract and
which provides for arbitration under these Rules shall be treated
as an agreement independent of the other terms of the contract. A
decision by the arbitral tribunal that the contract is null and
void shall not entail ipso jure the invalidity of the arbitration
clause.3. A plea that the arbitral tribunal does not have
jurisdiction shall be raised not later than in the statement of
defence or, with respect to a counter-claim, in the reply to the
counter-claim.4. In general, the arbitral tribunal should rule on a
plea concerning its jurisdiction as a preliminary question.
However, the arbitral tribunal may proceed with the arbitration and
rule on such a plea in their final award.FURTHER WRITTEN
STATEMENTSArticle 22The arbitral tribunal shall decide which
further written statements, in addition to the statement of claim
and the statement of defence, shall be required from the parties or
may be presented by them and fix the periods of time for
communicating such statements.PERIODS OF TIMEArticle 23The periods
of time fixed by the arbitral tribunal for the communication of
written statements (including the statement of claim and statement
of defence) should not exceed forty-five days. However, the
tribunal may extend the time limits if it concludes that extension
is justified.EVIDENCE AND HEARINGS (ARTICLE 24 AND 25)Article 241.
Each party shall have the burden of proving the facts relied on to
support his claim or defence, and to the arbitral to the tribunal
may, if it consider it appropriate, require a party to deliver to
the tribunal and the 4other party within such a period of time as
the arbitral shall decide, a summary of the documents and other
evidence which that party intends to present in support of the
facts in issue set out in his statement of claim or statement of
defence.2. At any time during the arbitral proceedings the arbitral
tribunal may require the parties to produce documents, exhibits or
other evidence within such a period of time as the arbitral
tribunal shall determine.Article 251. In the event of an oral
hearing, the arbitral tribunal shall give the parties adequate
advance notice of the date, time and place thereof.2. If witnesses
are to be heard, at least fifteen days before the hearing each
party shall communicate to the arbitral tribunal and to the other
party the names and addresses of the witnesses he intends to the
present, the subject upon and the languages in which such witnesses
will give their testimony. 3. The arbitral tribunal shall make
arrangements for the translation of oral statement made at a
hearing and for a record of the hearing of either is deemed
necessary by the tribunal under the circumstances of the case, or
if the parties have agreed thereto and have communicated such
agreement to the tribunal at least fifteen days before the
hearing.4. Hearings shall be held in camera unless the parties
agree otherwise. The arbitral tribunal may require the retirement
of any witnesses or witnesses during the testimony of other
witnesses. The arbitral tribunal is free to determine the manner in
which witnesses are determined 5. Evidence of witnesses may also be
presented in the form of written statements signed by them.6. The
arbitral tribunal shall determine the admissibly, relevance,
materiality and weight of the evidence offered.INTERIM MEASURES OF
PROTECTIONArticle 261. At the request of either party, the arbitral
tribunal may take any interim measures it deems necessary in
respect of the subject-matter of the dispute, including measures
for the conservation of the goods forming the subject-matter in
dispute, such as ordering their deposit with a third person or the
sale of perishable goods.2. Such interim measures may be
established in the form of an interim award. The arbitral tribunal
shall be entitled to require security for the cost of such
measures.3. A request for interim measures addressed by any party
to court shall not be deemed incompatible with the agreement to
arbitrate, or as a waiver of the agreement.EXPERTSArticle 271. The
arbitral tribunal may appoint one or more experts to report to it
in writing, on specific issues to be determined by the tribunal. A
copy of the experts term of reference, established by the arbitral
tribunal, shall be communicated to the parties.2. The parties shall
give the expert any relevant information or produce for his
inspection any relevant documents or goods that he may require of
them. Any dispute between a party and such expert as to the
relevance of the required information or production shall be
referred to the arbitral tribunal for decisions.3. Upon a receipt
of the experts report the arbitral tribunal shall communicate a
copy of the report to the parties who shall be given the
opportunity to express, in writing, their opinion on the report. A
party shall be entitled to examine any document on which the expert
has relied on his report.4. At the request of either party the
expert, after delivering the report, may be heard at a hearing
where the parties shall have the opportunity to be present and to
interrogate the expert. At this hearing either parity may present
expert witnesses in order to testify on the points at issue. The
provisions of article 25 shall be applicable to such
proceedings.DEFAULTArticle 281. If, within the period of time fixed
by the arbitral tribunal, the claimant has failed to communicate
his claim without showing sufficient cause for such failure, the
arbitral tribunal shall issue an order for the termination of the
arbitral proceedings. If, within the period of time fixed by the
arbitral tribunal, the respondent has failed to communicate his
statement of defence without showing sufficient cause for such
failure, the arbitral tribunal shall order that the proceedings
continue.2. If one of the parties duly notified under these Rules,
fails to appear at a hearing, without showing sufficient cause for
such failure, the arbitral tribunal may proceed with the
arbitration.3. If one of the parties, duly invited to produce
documentary evidence, fails to do so within the established period
of time, without showing sufficient cause for such failure, the
arbitral tribunal may make the award on the evidence before
it.CLOSURE OF HEARINGSArticle 291. The arbitral tribunal may
inquire of the parties if they have any further proof to offer or
witnesses to be heard or submissions to make and, if there are
none, it may declare the hearings closed.2. The arbitral tribunal
may, if it considers it necessary owing to exceptional
circumstances, decide, on its own motion or upon application of a
party, to re-open the hearings at any time before the award is
made.WAIVER OF RULESArticle 30A party who knows that any provision
of, or requirement under, these rules has not been complied with
and yet proceeds with the arbitration without promptly stating his
objection to such non-compliance, shall be deemed to have waived
his right to object.SECTION IVTHE AWARD/DECISIONSArticle 311. When
there are three arbitrators, any award or other decision of the
arbitral tribunal shall be made by a majority of the arbitrators.2.
In the case of questions for procedure, when there is no majority
or when the arbitral tribunal so authorises, the presiding
arbitrator may decide on his own, subject to revision, if any, by
the arbitral tribunal.FORM AND EFFECT OF THE AWARDArticle 321. In
addition to making a final award, the arbitral tribunal shall be
entitled to make interim, interlocutory, or partial awards.2. The
award shall be made in writing and shall be final and binding on
the parties. The parties undertake to carry out the award without
delay.3. The arbitral tribunal shall state the reasons upon which
the award is based, unless the parties have agreed that no reasons
are to be given.4. An award shall be signed by the arbitrators and
it shall contain the date on which and the place where the award
was made. Where there are three arbitrators and one of them fails
to sign, the award shall state the reason for the absence of
signature.5. The award may be made public only with the consent of
both parties.6. Copies of the award signed by the arbitrators shall
be communicated to the parties by the arbitral tribunal.APPLICABLE
LAW, AMIABLE COMPOSITEURArticle 331. The arbitral tribunal shall
apply the law designated by the parties as applicable to the
substance of the dispute.2. The arbitral tribunal shall decide as
amiable compositeur or ex aequo et bono only if the parties have
expressly authorised the arbitral tribunal to do so and if the law
applicable to the arbitral procedure permits such arbitration. 3.
In all cases, the arbitral tribunal shall decide in accordance with
the terms of the contract and shall take into account the usage of
the trade applicable to the transaction.SETTLEMENT OR OTHER GROUNDS
FOR TERMINATIONArticle 341. If, before the award is made, the
parties agree on a settlement of the dispute, the arbitral tribunal
shall either issue an order for termination of the arbitral
proceedings or, if requested by both parties and accepted by the
tribunal, record the settlement in the form of an arbitral award on
agreed terms. The arbitral tribunal is not obliged to give reasons
for such an award.2. If, before the award is made, the continuation
of the arbitral proceedings becomes unnecessary or impossible for
any reason not mentioned in paragraph 1, the arbitral tribunal
shall inform the parties of its intention to issue an order for
termination of the proceedings. The arbitral tribunal shall have
the power to issue such an order unless a party raises justifiable
ground for objection.3. Copies of the order for termination of the
arbitral proceedings or of the arbitral award on agreed terms,
signed by the arbitrators, shall be communicated by the arbitral
tribunal to the parties. Where the arbitral award on agreed terms
is made, the provisions of Article 32, paragraph 2 and 4 to 6,
shall apply.INTERPRETATION OF AWARDArticle 341. Within thirty days
after receipt of the award, either party, with notice to the other
party, may request that the arbitral tribunal give an
interpretation of the award.2. The interpretation shall be given in
writing within forty-five days after receipt of the request. The
interpretation shall form part of the award and the provisions of
Article 32, paragraph 2and 6, shall apply.CORRECTION OF
AWARDArticle 361. Within thirty days after receipt of award, either
party, with notice to the other party, may request the arbitral
tribunal to correct in the award any errors in computation, any
clerical or typographical errors, or any errors of similar nature.
The arbitral tribunal may within thirty days after the
communication of the award make such corrections on its own
initiative.2. Such corrections shall be in writing, and the
provisions of Article 32, paragraphs 2 and 6, shall
apply.ADDITIONAL AWARDArticle 371. Within thirty days after the
receipt of the award, either party, with notice to the other party,
may request the arbitral tribunal to make an additional award as to
claims presented in the arbitral proceedings but omitted from the
award.2. If the arbitral tribunal considers the request of an
additional award to be justified and considers that the omission
can be rectified without any further hearings or evidence, it shall
complete its award within sixty days after the receipt of the
request.3. When an additional award is made, the provisions of
Article 32, paragraphs 2 to 6, shall apply.COSTS (ARTICLES 38 TO
40)Article 38The arbitral tribunal shall fix the cost of
arbitration in its award.The term "costs" includes only-(a) the
fees of the arbitration tribunal to be stated separately as to each
arbitrator and to be fixed by the tribunal itself in accordance
with Article 39;(b) the travel and other expenses incurred by the
arbitrators;(c) the cost of expert advice and of other assistance
required by the arbitral tribunal;(d) the travel and other expenses
of witnesses to the extent that such expenses are approved by the
arbitral tribunal;(e) the cost for legal representation and
assistance of successful party if such cost were claimed during the
arbitral proceedings, and only to the extent that the arbitral
tribunal determines that the amount of such cost is
reasonable.Article 39The fees of the arbitral tribunal shall be
reasonable in amount, taking into account the amount in dispute,
the complexity of the subject-matter, the time spent by the
arbitrators and any other relevant circumstances of the
case.Article 401. Except as provided in paragraph 2, the cost of
arbitration shall in principle be borne by unsuccessful party.
However, the arbitral tribunal may apportion each of such cost
between the parties if it determines that apportionment is
reasonable taking into account the circumstances of the case.2.
With respect to the cost of legal representation and assistance
referred to in Article 38, paragraph (e), the arbitral tribunal,
taking into account the circumstances of the case, shall be free to
determine which party shall bear such costs or may apportion such
costs between the parties if it determines that apportionment is
reasonable.3. When the arbitral tribunal issues an order for the
termination of arbitral proceedings or makes an award on agreed
terms it shall fix the cost of arbitration referred to in Article
38 and Article 39, in the text of that order or award.4. No
additional fees may be charged by an arbitral tribunal for
interpretation or correction or completion of its award under
Articles 35 to 37.DEPOSIT OF COSTSArticle 411. The arbitral
tribunal, on its establishment, may request each party to deposit
an equal amount as an advance for the cost referred to in Article
38, paragraphs, (a), (b) and (c).2. During the course of the
arbitral proceedings the arbitral tribunal may request
supplementary deposits from the parties.3. If the required deposits
are not paid in full within thirty days after the receipt of the
requests, the arbitral tribunal shall so inform the parties in
order that one or another of them may make the required payment. If
such payment is not made, the arbitral tribunal may order the
suspension or termination of the arbitral proceedings.4. After the
award has been made, the arbitral tribunal shall render an account
to the parties of the deposits received and return any unexpected
balance to the parties.SECOND SCHEDULECONVENTION OF THE RECOGNITION
AND ENFORCEMENTOF FOREIGN ARBITRAL AWARDS JUNE 10, 1958Article 11.
This convention shall apply to the recognition and enforcement of
arbitral awards made in the territory of a State other than the
State where the recognition and enforcement of such award are
sought, arising out of difference between persons, whether physical
or legal. It shall also apply to arbitral awards not considered as
domestic awards in the State where their recognition and
enforcement are sought.2. The term "arbitration awards" shall
include not only awards made by arbitrator, appointed for each case
but also made by permanent arbitral bodies to which the parties
have submitted.3. When signing, ratifying or acceding to this
Convention, or notifying extension under Article X hereof, any
State may on the basis of reciprocity declare that it will apply
the Convention to the recognition and enforcement of awards made
only in the territory of another Contracting State. It may also
declare that it will apply the Convention only to differences
arising out of legal relationships whether contractual or not,
which are considered commercial under the national law of the State
making such declaration.Article 111. Each Contracting State shall
recognise an agreement in writing under which the parties undertake
to submit to arbitration all or any differences which have arisen
or which may arise between them in respect of a defined legal
relationship, whether contractual or not, concerning a subject
matter capable of settlement by arbitration.APPENDICES2. The term
"agreement in writing" shall include an arbitral clause in a
contract or in an arbitration agreement, signed by the parties or
contained in an exchange of letters or telegrams.3. The court of a
contracting State, when seized of an action in a matter in respect
of which the parties have made an agreement within the meaning of
this article, shall, at the request of one of the parties, refer
the parties to arbitration, unless it finds that the said agreement
is null and void, inoperative or incapable of being
performed.Article 111Each Contracting State shall recognise
arbitral awards as binding and enforce them in accordance with the
rules of procedure of the territory where the award is relied upon,
under the conditions laid down in the following articles. There
shall not be imposed substantially more onerous conditions or
higher fees or charges on the recognition enforcement of arbitral
awards to which this Convention applies than are imposed on the
recognition or enforcement of domestic arbitral awards.Article IV1.
To obtain the recognition and enforcement mentioned in the
preceding article, the party applying for recognition and
enforcement shall, at the time of application supply:(a) the duly
authenticated original award or duly certified copy thereof;(b) the
original agreement referred to in Article 11 or a duly certified
copy thereof 2. If the said award or agreement is not made in an
official language of the country in which the award is relied upon,
the party applying for recognition and enforcement of the award
shall produce a translation of these document into such language.
The translation shall be certified by an official or sworn
translator or by a diplomatic agent.Article V1. Recognition and
enforcement of the award may be refused, at the request of the
party against whom it is invoked, only if that party furnishes to
the competent authority where the recognition and enforcement is
sought, proof that-(a) the parties to the agreement referred to in
Article 11 were, under the law applicable to them, under some
incapacity, or the said agreement is not valid under the law to
which the parties have subjected it or, failing any indication
thereon, under the law of the country where the award was made;
or(b) the party against whom the award is invoked was not given
proper notice of the appointment of the arbitrator or of the
arbitration proceedings or was otherwise unable to present his
case; or(c) the award deals with a difference not contemplated by
or not failing within the terms of the submission to arbitration,
provided that, if the decision on matters submitted to arbitration
can be separated from those not so submitted, that part of the
award which contains decisions on matters submitted to arbitration
may be recognised and enforcement; or(d) the composition of the
arbitral authority or the arbitral procedure was not in accordance
with the agreement of the parties, or, failing such agreement, was
not in accordance with the law of the country where the arbitration
took place; or(e) the award has not yet become binding on the
parties, or has been set aside or suspended by a competent
authority of the country in which, or under the law of which, the
award was made.2. Recognition and enforcement of an arbitral award
may also be refused if the competent authority in the country where
recognition and enforcement is sought finds that-(a) the subject
matter of the difference is not capable of settlement by
arbitration under the law of that country; or(b) the recognition or
enforcement of the award would be contrary to the public policy of
that country.Article VIIf an application for the setting aside or
suspension of the award has been made to a competent authority
referred to in Article V paragraph (1)(e), the authority before
which the award is sought to be relied upon may, if it considers it
proper, adjourn the decision on the enforcement of the award and
may also, on the application of the party claiming enforcement of
award, order the party to give suitable security.APPENDICESArticle
VII1. the provisions of the present Convention shall not affect the
validity of multilateral or bilateral agreements concerning the
recognition and enforcement of arbitral awards entered into by the
Contracting States nor deprive any interested party of any right he
may have to avail himself of an arbitral award in the manner and to
the extent allowed by the law or the treaties of the country where
such award is sought to be relied upon.2. The Geneva Protocol on
Arbitration Clauses of 1923 and the Geneva Convention on the
Execution of Foreign Arbitral Awards of 1927 shall cease to have
effect between Contracting States on their becoming bound and to
the extent that they become bound, by this Convention.Article
VIII1. This Convention shall be open until 31st December 1958 for
signature on behalf of any Member of the United Nations and also on
behalf of any other State which is or thereafter becomes a party to
the Statute of the International Court of Justice, or any other
state to which an invitation has been addressed by the General
Assembly of the United Nations. 2. This Convention shall be
ratified and the instrument of ratification shall be deposited with
the Secretary-General of the United Nations.Article IX1. This
Convention shall be open for accession to all States referred to in
Article VIII. 2. Accession shall be effected by the deposit of an
instrument of accession with the Secretary-General of the United
Nations.Article X1. Any State may, at the time of signature,
ratification or accession, declare that his convention shall extent
to all or any of the territories for the international relations of
which it is responsible. Such a declaration shall take effect when
the Convention enters into force for the State concerned2. At any
time thereafter any such extension shall be made by notification
addressed to the Secretary-General of the United Nations and shall
take effect as from the ninetieth day after the day or receipt by
the Secretary-General of the United Nations of this notification,
or as from the date of entry into force of the Convention for the
State concerned, whichever is the later.3. With respect to those
territories to which this Convention is not extended at the time of
signature, ratification or accession, each State concerned shall
consider the possibilities of taking the necessary steps in order
to extend the application of this Convention to such territories,
subject, where necessary for constitutional reasons, to the consent
of the Governments of such territories.Article XI1. In the case of
a federal or non-unitary state, the following provisions shall
apply-(a) with respect to those articles of this Convention that
come within the legislative jurisdiction of the federal authority,
the